DCPP VS. G.F., J.J., AND R.W., IN THE MATTER OF THE GUARDIANSHIP OF H.W. (FG-19-0041-19, SUSSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4777-18T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
G.F. and J.J.,
Defendants,
and
R.W.,
Defendant-Appellant.
________________________
IN THE MATTER OF THE
GUARDIANSHIP OF H.W.,
a Minor.
________________________
Submitted May 11, 2020 – Decided August 3, 2020
Before Judges Ostrer and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FG-19-0041-19.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Catherine W. Wilkes, Assistant Deputy
Public Defender, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Donna Sue Arons and Jane C. Schuster,
Assistant Attorneys General, of counsel; Victoria
Almeida Galinski, Deputy Attorney General, on the
briefs).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (David Ben Valentin, Assistant
Deputy Public Defender, on the briefs).
PER CURIAM
Defendant R.W. (Richard) appeals from the Family Part's June 14, 2019
guardianship judgment, after a trial, terminating his parental rights to H.W.
(Heather), born January 2006. Richard challenges the court's findings on all
four prongs of the best interests standard. N.J.S.A. 30:4C-15.1(a). The Law
Guardian joins the Division in opposing the appeal. Heather supported
termination in her trial testimony.
Richard is neither Heather's biological nor adoptive father. But, the trial
court determined after a plenary hearing that he was Heather's psychological
parent, notwithstanding her estrangement from him, and he thus had standing to
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2
contest the complaint of the Division of Child Protection and Permanency
(Division) to terminate his rights. 1 Heather's mother, G.F. (Gloria),
conditionally surrendered her parental rights. After Richard's trial, the court
terminated the rights of Heather's biological father, who had never been
involved in Heather's life.
Having reviewed the record in light of Richard's arguments, we conclude
that the trial court correctly applied the governing legal principles, and sufficient
credible evidence supports its finding that the Division satisfied the best
interests standard. We so conclude notwithstanding that eight months after the
trial court entered judgment, Heather was removed from the resource home that
the trial court found was pre-adoptive.2 We decline Richard's informal request
that we remand in light of the new development, which the Division and the Law
1
The trial court relied on V.C. v. M.J.B., 163 N.J. 200 (2000). Gloria and the
Law Guardian unsuccessfully argued that Richard was not a psychological
parent and should be dismissed from the litigation. The Division took no
position on the question. As the Law Guardian did not cross-appeal from the
trial court's order, we assume, without deciding, its correctness.
2
The Division advised the court of this development pursuant to Rule 2:6-11(f),
after Richard filed his initial brief, and the Law Guardian filed his responding
brief. As Gloria engaged in an "identified surrender," conditioning her surrender
on the Smiths' adoption, Heather's removal from the Smith family reinstated her
parental rights. See N.J. Div. of Child Prot. & Permanency v. P.O., 456 N.J.
Super. 399, 408 (App. Div. 2018). In June 2020, Gloria generally surrendered
her rights.
A-4777-18T3
3
Guardian oppose. 3 Although the trial court weighed the then-positive
relationship between Heather and her resource parents, the court grounded its
decision in its finding that Richard continued to threaten significant harm to
Heather's emotional and mental health. That threat arose out of the trauma
Heather suffered because of Richard's drug abuse and related behaviors, her
repeated removals from his home, her multiple placements thereafter, and her
recent discovery that he was not her biological father. Therefore, we affirm.
I.
The Division presented its case through the testimony of therapists
involved in providing services to Heather; Division workers familiar with the
services provided the family; one of Heather's resource parents at the time; and
a psychological expert, Barry Katz, Ph.D. The court also heard from Heather,
who testified in camera; and the Law Guardian's psychological expert, Frank
3
Richard argued for a remand in his reply brief, but filed no formal motion
seeking that relief. We ordered the Division and the Law Guardian to file
surreply briefs to address whether a remand was warranted. They both
contended it was not. We assume Heather continues to support termination of
parental rights, as the Law Guardian has not advised us to the contrary. See N.J.
Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 113 (2008) (stating that
"'[l]aw guardians are obliged to make the wishes of their clients known'"
(quoting N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44,
70 (App. Div. 2002))).
A-4777-18T3
4
Dyer, Ph.D. In his defense, Richard testified and presented two therapists who
provided family therapy. We discern the following from that evidence.
Beginning at the age of four, Heather experienced multiple removals from
one or both her parents arising out of their substance abuse; she also experienced
multiple placements within the child welfare system. Heather occasionally
accompanied Richard on his trips to purchase drugs; other times, she was left
home alone. She often saw him use drugs and she observed his changed
behavior. After she returned to his care after a nearly year-long removal in 2015,
Richard broke his promise to Heather that he would remain sober, leading to her
removal again in 2017. Richard admitted at trial that he did not achieve lasting
sobriety until after that last removal. The Division's and the Law Guardian's
experts testified that Heather suffered from complex trauma that was
exacerbated by contact with Richard.
Richard was romantically involved with Gloria when she was already
pregnant with Heather. They lived in Indiana. When Heather was born, he
agreed to have his name placed on her birth certificate. Less than a year later,
Gloria and Richard had a son, Isaac.
The family moved to Massachusetts. After Gloria was "psychiatrically
hospitalized" in 2008, Richard was granted sole legal and physical custody of
A-4777-18T3
5
the children. But, two years later, both children were removed from Richard’s
care after it was discovered Isaac had a burn mark on his body. Richard could
not explain the burn, but Heather said Richard had burned Isaac with a lighter.
Both children then moved into Gloria's care in Indiana.
In April 2012, due to allegations of substance abuse and domestic
violence, Heather and Isaac were removed from the Indiana home of Gloria and
her paramour, and placed into foster care. Heather had tested positive for
methamphetamine, indicating she had secondhand exposure to the drug. A few
months later, Indiana conditionally placed Heather and Isaac in Richard's care
in Massachusetts, so long as he agreed to attend Alcoholics Anonymous
meetings, "submit to drug testing, and utilize in-home therapy services for the
children." Later, Richard moved the family to Sussex County.
Richard admitted in his trial testimony that he was never really sober. The
Division was involved with the family in 2014, responding to multiple referrals
of drug use and child neglect that were deemed unfounded or not established. 4
In late 2014, police arrested Richard after discovering crack cocaine and drug
paraphernalia in his car after a motor vehicle stop. The children remained in his
4
See N.J. Dep't of Children & Families v. R.R., 454 N.J. Super. 37, 40-41 (App.
Div. 2018) (describing "not established" and "unfounded" findings).
A-4777-18T3
6
care. Heather recalled that Richard would go to Paterson to buy drugs and
sometimes she accompanied him; other times, she and Isaac would be left home
alone. One time, when she could not reach him by phone, she went downstairs
to the neighbor, who took care of them until he returned. She also recalled
watching him use drugs, and then observe his behavior change. She recalled at
trial, without specifying the time, that she asked a neighbor to get Richard help
for his drug problem. "I wanted him to get better. . . . [Richard] told me that if
he ever goes to jail or gets caught ever because of me, he would never want to
see me ever again."
Richard was arrested again for cocaine possession during a late night
traffic stop in March 2015. Isaac was with him, but Heather, then nine-years
old, discovered no one was home when she woke up alone. She and Isaac were
emergently removed and placed in resource care, and did not return to Richard
until February the following year. During that time, they cycled through
multiple resource homes. Both children received individual therapy. They
expressed the desire to return to Richard.
Richard was released from custody in July 2015, but arrested again for
crack cocaine possession and placed on probation. Eventually, Richard
completed a substance abuse evaluation, outpatient treatment, and individual
A-4777-18T3
7
therapy. He exercised twice-weekly supervised visitation. He also had a job
and housing when he regained custody. Heather testified that upon their
reunification, Richard promised her that "he would never do any . . . drugs again,
and he would never go to Paterson again." The Division closed its case in Spring
2016.
However, as he admitted at trial, he was not really sober. He also did not
continue Heather in therapy, as he had agreed to do. In particular, he had
committed to disclose to Heather in a therapeutic setting that he was not her
biological father, but he failed to do so. The Division opened the case again in
April 2017, upon receiving a referral from the Vernon Police Department. The
police had responded to a welfare call upon allegations Richard was under the
influence when he returned to retrieve Isaac from a friend's house. The children
remained in Richard's care, but he was to submit to urine screens.
Then, in May 2017, Richard was arrested again. This time, he had
overdosed on heroin while out driving and needed to be revived with Narcan. A
good samaritan saw Richard's car veer off the road and called the police for help.
The children were home alone. After Richard's arrest, Heather and Isaac were
removed again, and placed together in a resource home. Heather testified she
A-4777-18T3
8
felt that Richard had lied to her about his drug use. But, she worried that she
"wasn't going to get a second chance to go back to him."
The Division explored placing the children back with Gloria, Richard's
mother, or the maternal grandmother of another of Richard's children, but all
three were ruled out. After multiple placements, Heather was placed with the
Smith family in June 2017, and remained there through the trial except for brief
respite periods. The Smiths committed to adopt Heather (although as noted, the
relationship deteriorated and Heather was removed from the Smiths' home in
February 2020).
Richard completed inpatient drug treatment in late June 2017, and
resumed visitation in the summer. Both children expressed the desire to reunite
with Richard.
But, two developments affected Heather's relationship with Richard. One
pertained to where Heather went to school. The Smiths lived an hour away from
where she had been going to school. Heather wanted to transfer to the school
near the Smiths, so she could participate in after-school activities. Richard
opposed this. Although Heather prevailed, the issue created a big rift between
Heather and Richard.
A-4777-18T3
9
The second development was that Gloria — without any therapeutic
preparation or planning — informed Heather, in a September 2017 phone call,
that Richard was not her biological father. Gloria also informed Heather that a
boyfriend had shot her in the face, causing her permanent injury. Heather also
learned that she was bi-racial (Richard and Gloria are white.) 5
When Heather learned Richard was not her biological father, she refused
to attend therapeutic visitation until February 2018. Heather began receiving
individual therapeutic services in September 2017. While Isaac returned to
Richard's care at the end of March 2018, the relationship between Heather and
Richard remained fraught.
As Heather explained at trial, Richard provoked a complex set of
emotions:
[W]hen I look at him, it's hard to explain what goes on
in my head, but drugs, foster care, he's abandoned me
two times, . . . it's just really hard to stand next to
somebody that said they cared for me but they don't and
. . . they have a weird way of showing it. . . . I just don't
like looking at him.
5
It is unclear whether Heather learned this during her telephone conversation
with her mother, or later. Heather subsequently obtained a DNA test to explore
her identity.
A-4777-18T3
10
She said she "felt relieved" when she found out he was not her biological father.
She lacked confidence in his sobriety. "[E]very time he breaks up with a woman,
he goes to drugs." She recalled that he would promise to stop using, attain
temporary sobriety, and then relapse.
She testified that she wanted to terminate her relationship with him. "I
want to move on from the past and the horror movie that happened." She
explained the "horror movie" was her life. "My life has been about drugs, foster
care. There ha[ve] been some happy moments, but . . . when bad things happen,
it's really hard to just think about the good things."
She looked forward to a "happy future" with the Smiths. She said she
"would feel happy" if Richard's rights were terminated, because she'd feel "out
of the woods. Meaning that I don't have to live through drugs again and go
through foster care."
Although Richard maintained that the Smiths alienated Heather from him,
Heather testified that they encouraged her to visit him and to attend therapy, and
the decision to resist visitation was hers.
At trial, Richard insisted that his sobriety was permanent and a
reunification would be different from the previous times.
[W]hat makes this different is if we're gonna talk about
recovery, and we're gonna talk about whether I'm gonna
A-4777-18T3
11
relapse and destroy the little girl's world again, you
know, I personally got the time that I needed, got the
help that I needed. . . . And in the past, you know,
nothing about me changed. I can't even honestly sit
here today and say I ever quit using before this past two
years.
He admitted that "[Heather's] never had stability, even to this day, you
know, I can't look back and say that I've ever given her a completely stable
household." But he insisted he was prepared to do that. He owned a successful
construction business; he was involved with another woman; and intended to
move to a new house in Irvington, New York, where they would live with Isaac
and the woman's own eight-year-old son. He insisted that uprooting Heather
and moving her away from friends and school would offer Heather a "fresh start
. . . a solid and stable environment, a home, a new community, new friends, a
mother figure, a brother, sister." 6 He agreed the transition would not be easy.
He said he would get her services. But when the court asked him if it should
just order Heather to return home to him, he said, "I think we should let
[Heather] come visit and see how she feels." He said she should meet his fiancé,
see their new house, and take a tour of the local school and the community "and
then see how she feels."
6
Richard has a six-year-old daughter with another woman, who has primary
residential custody.
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12
As noted, experts for the Division and the Law Guardian testified that
Heather experienced complex emotional trauma. Dr. Barry Katz, testifyin g for
the Division, opined that the trauma was caused by, among other things, parental
drug abuse, neglect, removals, failed reunifications, broken promises of
sobriety, and discovering that the person she had perceived as her biological
father was not that after all. Dr. Katz stated that Richard was "the representation
of the threat, of the trauma. She's had four removals from his care. She's
experienced his substance use disorder." Merely seeing Richard triggers in
Heather adverse reactions: the "freeze" or "traumatic aspect" in which "she shuts
down, she doesn't respond"; the "flee aspect . . . her not wanting to engage with
him"; and the "fight . . . aspect, her kind of aggressive, verbally aggressive
responses to him."
Dr. Katz explained that Heather's "extreme level of trauma . . . affected
her attachment and her ability to bond and relate to [Richard]," despite his recent
success in achieving sobriety. In other words, although he had "corrected the
substance use . . . he's been unable to correct the harm that was caused from the
abuse . . . that had occurred." "[T]he damage has not been undone even though
[Richard] is no longer using . . . the harm is still there. She still can't reunify
with him at this time. He still can't parent her in the foreseeable future." He
A-4777-18T3
13
opined that she might, with therapy, be receptive to a non-parental relationship
with him if he were not presented as a "threat to her current attachment" to her
resource parents.
Although he noted the she had bonded with the current caretakers in
opining that "termination of parental rights would do more good than harm for
this child," he also opined that termination would cause no harm.
[T]here's no harm that would be done to [Heather] if the
parental relationship with [Richard] is severed at this
time because basically it's been severed. It hasn't been
there for two years. In fact, even when it was there, it
still wasn't there. It was more trauma than it was
anything else for her. And that's what her takeaway is
from it, and that's what the effect on her brain and her
emotions are from that, and her body as well. So, when
stressed and pushed into that and when that's a threat,
we see signs of new breakdowns occurring consistent
with complex trauma. There are the . . . recent reports
of eating disorder problems, [and] . . . headaches
following the visits.
Testifying for the Law Guardian, Dr. Frank Dyer performed a bonding
assessment of Richard and Heather, and psychological evaluation of Richard.
He testified that Richard "verbalize[d] that [Heather] suffered because of his
actions," and acknowledged that his drug use led to "the determination t hat the
children were not safe in his home in both of those instances." But, he
mistakenly believed that once he achieved lasting sobriety, Heather could return
A-4777-18T3
14
home. Richard also attributed Heather's resistance to reunification to what he
believed was the Division's inadequate response to her discovery of his non-
parentage, and Heather's prolonged stay in resource care.
However, Dr. Dyer held Richard primarily responsibility for Heather's
aversion to him, not any failure in services. Although Dr. Dyer conceded that
more intensive services should have been provided Heather, he noted Richard's
failure to access services for Heather, as he agreed, when she was in his custody.
Dr. Dyer concluded that even if Richard had moved beyond the
"immediate danger of relapse," "we are all well past any possibility of a
successful reunification with [Heather] because of this trauma dynamic." He
explained:
As I view the problem, this child has been so profoundly
affected by her history of repeated traumatic experiences,
losses, disruptions in the continuity of her care, and especially
reunifications with [Richard] in which he promised to take
care of her, to provide for her needs, and promised to do the
right thing, in other words, to serve as an adequate role model
for her, and then to fail utterly at that, to expose her to
renewed drug related behaviors, dates in which he was
impaired, and ultimately further removals, that all of these
experiences add up to a severely traumatized, frightened and
ashamed child with poor self-esteem, a very confused and
perhaps chaotic self-concept who is struggling to maintain
some kind of organized life at this point, and to maintain her
psychological equilibrium.
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The unsuccessful reunifications with Richard "increased her distrust ."
Not only did Dr. Dyer opine that a reunification would likely fail — drawing on
his familiarity with hundreds of cases, he had never seen a successful
reunification follow a failed one — Dr. Dyer stated that attempting it would
"have an extraordinarily negative effect on [Heather]." Heather's "brain
organization" led her to experience a "stress response; fight, flight or freeze; that
is triggered very easily by the slightest stimuli that remind her of everything that
she went through while she was under the care of [Richard]. And that is not
going to change." Heather told Dr. Dyer that when she sees Richard, "she is
reminded of all the drugs stuff, and all the drug stuff comes back . . . contact
with [Richard] is a trauma trigger for her because of her experiences of living in
a drug environment." Heather also reported not being able to eat after seeing
Richard. She told Dr. Dyer that she did not want to return to Richard's custody.
Dr. Dyer opined that terminating the parental relationship would cause no
harm; instead, it would provide Heather with "relief." Although he may have
been Heather's psychological parent in the past, "she is no longer attached to
him as a result of these negative experiences . . . ."
On the other hand, continuing the parental relationship was a source of
continuing trauma. "[S]he would suffer severe and enduring harm if the parental
A-4777-18T3
16
relationship were carried forward." Disrupting Heather's placement with the
Smiths — who Dr. Dyer viewed as future adoptive parents — "would inflict
more damage on her, would re-traumatize her, would make her more insecure,
more angry, more anxious than she already is." Richard would be unable to
"mitigate any harm done by the loss of the resource parents."
II.
Judge Michael C. Gaus rendered a comprehensive written opinion in
support of his order terminating Richard's parental rights. Judge Gaus found Dr.
Katz and Dr. Dyer to be credible expert witnesses. He credited Heather's
testimony, finding her recall "compelling," and "[h]er explanation supporting
her desire [to remove Richard from her life]" to be "detailed and believable."
He also credited the Division's other witnesses. In contrast, the trial judge found
Richard was not credible; and his testimony indicated a "lack of understanding
as to the depth and seriousness of [Heather's] trauma."
The court found that the Division met all four prongs of the best interests
standard. N.J.S.A. 30:4C-15.1(a)(1)-(4). The court noted that Richard did not
contest prong one — "whether the child's health and development has been or
will continue to be endangered by the parental relationship." Moreover, there
was "overwhelming evidence" the prong was satisfied. Richard had been
A-4777-18T3
17
previously arrested buying drugs and overdosing late at night while leaving
Heather home alone; Heather had been removed from Richard's care multiple
times; and Richard often took Heather with him to purchase drugs in New Jersey.
Although the risk of harm to [Heather] stemming from
[Richard's] drug use itself was substantial, the most
detrimental harm to [Heather] was the emotional harm
she suffered as the result of multiple Division removals,
attempted reunifications, and [Richard's] lies and
broken promises. . . . [H]is parental relationship with
[Heather] is highly likely to cause recurrent harm.
The court noted "the expert testimony regarding the harm that has befallen
[Heather] has been clear, unambiguous and uncontroverted."
Judge Gaus held that prong two "focuses on determining whether the
parent has rectified the harm that initially endangered the child's health, safety,
and welfare, and whether the parent is able to continue a relationship with the
child without placing the child at risk of further harm." (Citing K.H.O., 161 N.J.
at 352). The court addressed the harm Heather would suffer if her bond with
the Smiths were disrupted.
But, the court also found that Richard "is unable or unwilling to eliminate
the harm that has endangered the child and the parental relationship." The court
cited Richard's lack of understanding and failure to act.
A willingness to try does not always equate to a
willingness to understand and act. His delay and
A-4777-18T3
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resistance to some of the Division's requests and
services, and his assurance that [Heather] will be okay
when she moves with the family to New York because
she will, essentially, just have to tough it out, bespeaks
his unwillingness to truly accept the monumental
trauma he has caused her to suffer and with which she
continues to struggle.
However, prong two was also met because Richard's presence itself continued
to cause Heather harm:
He is unable to provide [Heather] with a safe and stable
home, primarily due to his own presence in the home.
Drs. Dyer and Katz both testified extensively about the
harm [Heather] suffers even visiting [Richard]. Even
merely seeing him brings [Heather] back to the trauma
she has suffered. Her trauma is so extensive that
therapeutic interventions have not assisted in helping
her reach a resolution at this time. Further, the
uncontroverted expert opinions of both Dr. Katz and
Dr. Dyer support the Division's position that continued
therapeutic interventions are currently rendered futile,
as [Heather] is so traumatized from the parental
relationship with [Richard] that continued interventions
at this time are detrimental to her health, safety, and
welfare.
Regarding prong three, the court concluded that the Division "made
reasonable efforts to provide services to help [Richard] correct the
circumstances which led to [Heather's] placement outside the home" and the
court considered alternatives to terminating parental rights. The court
recognized that reasonable efforts are "not measured by their success." (Quoting
A-4777-18T3
19
In re Guardianship of DMH, 161 N.J. 365, 393 (1999)). The court found the
Division's reasonable efforts included:
substance abuse evaluations, psychological evaluations,
bonding evaluations (both for [Heather] and [Richard] as well
as [Heather] and the resource parents) visitation, referrals to
therapeutic supervised visitation, individual therapy for
[Heather], [Richard], and [Isaac], family therapy, trauma
focused cognitive behavioral therapy for [Heather]; offers of
transportation, urine screens and hair/fingernail testing,
keeping [Richard] abreast of [Heather's] progress, challenges,
and needs, exploration of several relatives for placement,
family team meetings, and placement reviews.
Citing the experts' testimony, the court concluded that "[t]he emotional damage
to [Heather] over the years was too great to overcome," despite two years of
services. Implicitly rejecting Richard's argument that the Division failed to
provide appropriate services, Judge Gaus found, "The trauma that [Heather]
suffered, for which defendant is responsible, forms the crux of what has caused
the Division's reasonable efforts to fail."
As for prong four, the court found that termination of parental rights
would not do more harm than good. Judge Gaus relied on Heather's own
testimony that she wanted to be adopted by the Smiths and "her trust in [Richard]
is irreparably broken given the prior betrayals . . . ." The court credited one or
both experts' "extremely strong and uncontroverted" opinions that Richard
reminded Heather of her traumatic experiences; Heather did not view Richard
A-4777-18T3
20
as "an attachment figure"; reunification would destabilize her; and freeing her
for adoption would not cause "any appreciable level of psychological harm to
[Heather]." On the other hand, termination of her relationship with the Smiths
would cause "severe and enduring harm," which Richard would be unable to
mitigate. The judge concluded that "not terminating [Richard's] parental rights
will cause more harm than good" and "terminating parental rights would do more
good than harm." Having found all four prongs of the best interests test satisfied,
the trial court terminated Richard's parental rights.
III.
We exercise limited review of the trial court's decision. In re
Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We defer to the trial court's
fact-finding because of its "special expertise" in family matters and its "superior
ability to gauge the credibility of the witnesses who testify before it[.]" N.J.
Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). "We will not
disturb the family court's decision to terminate parental rights when there is
substantial credible evidence in the record to support the court's findings." N.J.
Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Put another
way, "the trial court's factual findings 'should not be disturbed unless they are
so wholly unsupportable as to result in a denial of justice.'" J.N.H., 172 N.J. at
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21
472 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div.
1993)).
In reviewing the legal issues de novo, see Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995), we must determine whether the
trial court properly applied the best interests standard, which requires the
Division to prove the following four factors by clear and convincing evidence:
(1) The child's safety, health, or development has been
or will continue to be endangered by the parental
relationship;
(2) The parent is unwilling or unable to eliminate the
harm facing the child or is unable or unwilling to
provide a safe and stable home for the child and the
delay of permanent placement will add to the harm.
Such harm may include evidence that separating the
child from his resource family parents would cause
serious and enduring emotional or psychological harm
to the child;
(3) The [D]ivision has made reasonable efforts to
provide services to help the parent correct the
circumstances which led to the child's placement
outside the home and the court has considered
alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more
harm than good.
[N.J.S.A. 30:4C-15.1(a).]
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Applying this standard of review, we would affirm substantially for the
reasons set forth in Judge Gaus's thorough opinion, were it not for Heather's
removal from the Smiths' home. The change in circumstances compels us to
provide additional comments regarding prongs two and four. Before doing so,
we briefly address Richard's challenge to the court's prong one and prong three
findings.
Regarding prong one, we reject Richard's challenge because the evidence
was overwhelming that both the retrospective and prospective aspects of the test
were met: Richard endangered Heather's "safety, health or development,"
N.J.S.A. 30:4C-15.1(a)(1), and the harm is such that it "threatens [Heather's]
health and will likely have continuing deleterious effects" on her in the future.
K.H.O., 161 N.J. at 352; see also N.J. Div. of Youth & Family Servs. v. H.R.,
431 N.J. Super. 212, 222 (App. Div. 2013) (finding that "harm and risk of harm
were proven because the parents' drug use resulted in their failure to provide a
stable home, with appropriate nurture and care of the young child, and because
they had a history of criminal arrests and incarcerations that created a serious
risk of emotional long-term harm of the child"). In trial testimony and in his
evaluations with the experts, Richard candidly acknowledged the harm he
caused Heather. Furthermore, his trial counsel conceded before the trial court
A-4777-18T3
23
that the Division met prong one. 7 Richard may not revisit the issue before us.
Reynolds v. Lancaster Cty. Prison, 325 N.J. Super. 298, 315 n.2 (App. Div.
1999) (stating that party who conceded that "plaintiffs had presented adequate
proofs" at trial "cannot disavow that concession and argue to the contrary on
appeal").
Regarding prong three, we reject Richard's contentions that the Division
offered inappropriate and inadequate services; the Division should have,
effectively, forced Heather to attend sessions with him; and the Division should
have removed Heather from the resource family, which he claimed alienated
Heather from him. The Division presented substantial evidence that Richard
and Heather received a broad array of appropriate services; Heather ultimately
7
Trial counsel stated:
The reason why I did not argue prong one is because to
[Richard]'s credit, he acknowledges that the history caused by
his substance abuse has caused trauma to his daughter. He's
never denied that. . . . [A]s to whether the child's health,
safety, development, he acknowledges that there's trauma.
We're not . . . to fight that she has trauma would be silly and
. . . would undercut his credibility in the [c]ourt's eyes, I
would . . . presume. So . . . that's not contested.
Although trial counsel disputed that Heather would "continue to be . . .
endangered by the parental . . . relationship," the prong one test is met by proving
either a child's health or development "has been . . . endangered" "or will
continue to be endangered." N.J.S.A. 30:4C-15.1(a)(1).
A-4777-18T3
24
decided that she could not face Richard and the experts testified that forcing her
to do so would exacerbate her trauma; and Heather testified that her resource
parents encouraged her to see Richard. We defer to Judge Gaus's factual
findings underpinning his prong three finding. As the judge recognized, success
is not the test as to whether the Division has made reasonable efforts under prong
three. The Division's "best efforts may not be sufficient to salvage a parental
relationship." F.M., 211 N.J. at 452.
We now turn to the second and fourth prongs of the best interest test. We
recognize that in reaching its findings as to both, the court relied on the evidence
that Heather had formed a strong bond with her resource parents, and that
terminating that bond would cause her severe harm. However, we are convinced
that, without more, proof that Heather was removed from her resource home is
insufficient to disturb the trial court's judgment.
The second prong can be established "if the destruction of the bond that
the child has developed with a third party during placement will cause the child
enduring emotional or psychological harm." Fall & Romanowski, Child
Custody, Protection & Support, § 13:5-3 (2019); see also F.M., 211 N.J. at 451
(stating that "[p]rong two may also be satisfied if 'the child will suffer
substantially from a lack of . . . a permanent placement and from the disruption
A-4777-18T3
25
of [the] bond with foster parents.'" (quoting K.H.O., 161 N.J. at 363) (alterations
in original)). However, the ultimate inquiry under prong two is "whether it is
reasonably foreseeable that the parents can cease to inflict harm upon the
children entrusted to their care. No more and no less is required of them than
that they will not place their children in substantial jeopardy to physical or
mental health." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607
(1986); see also In re Guardianship of J.C., 129 N.J. 1, 10 (1992) (stating "the
cornerstone of the [best interests of the child] inquiry is not whether the
biological parents are fit but whether they can cease causing their child harm").
Although the prong two finding may no longer rest on avoiding the harm
from separating Heather from the Smiths, the evidence supported the trial court's
finding that Richard was incapable of avoiding harm to Heather. As a result of
the history of trauma, Richard's mere presence triggered in Heather a fight or
flight response; emotional turmoil; and physical symptoms. The court credited
both experts' opinion that even attempting reunification would cause Heather
harm. As the judge found, "Even merely seeing [Richard] brings [Heather] back
to the trauma she has suffered. Her trauma is so extensive that therapeutic
interventions have not assisted in helping her reach a resolution at this time . . .
[and] continued therapeutic interventions are currently rendered futile." Thus,
A-4777-18T3
26
the judge appropriately "consider[ed] the potential psychological damage that
may result from reunification as the 'potential return of a child to a parent may
be so injurious that it would bar such an alternative.'" N.J. Div. of Youth &
Family Servs. v. L.J.D., 428 N.J. Super. 451, 480-81 (App. Div. 2012) (quoting
A.W., 103 N.J. at 605).
The post-judgment change in Heather's placement also removes an
element of the trial court's prong four finding that termination of parental rights
would not cause more harm than good. N.J.S.A. 30:4C-15.1(a)(4). The judge
recognized that this prong of the best interests test required comparing the
child's bonds with Richard and with her resource parents; and determining
whether terminating Richard's relationship would cause more harm than
disrupting the relationship with the resource parents. See K.H.O., 161 N.J. at
355. Nonetheless, "[i]nherent in the fourth factor is that a child has a 'paramount
need for a permanent and defined parent-child relationship.'" New Jersey Div.
of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 119 (App. Div. 2004)
(quoting J.C., 129 N.J. at 26). "The question ultimately is . . . whether a child's
interest will best be served by completely terminating the child's relationship
with th[e] parent." E.P., 196 N.J. at 108.
A-4777-18T3
27
Terminating the parental relationship will free Heather to form a
relationship with other resource parents. We are mindful of the "unfortunate
truth that not all children, who are 'freed' from their legal relationship with their
parents, find the stable and permanent situation that is desired even though this
is the implicit promise made by the state when it seeks to terminate the parent -
child relationship." A.W., 103 N.J. at 611. "A court should hesitate to terminate
parental rights in the absence of a permanent plan that will satisfy the child's
needs." N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593
(App. Div. 1996). On the other hand, "there will be circumstances when the
termination of parental rights must precede the permanency plan"; in particular,
"a young adolescent might not be adoptable at the time of the termination
proceedings." A.W., 103 N.J. at 611.
This case is unlike E.P., where the Court compared "the slim hope of
adoption" for a child with severe behavioral problems against terminating the
"one sustaining force in [the child's] young life — her mother's love and
emotional support." 196 N.J. at 109. There is no evidence before us, specifically
related to Heather, that the prospects for her permanent placement with another
A-4777-18T3
28
family are grim.8 Furthermore, the evidence was substantial that the relationship
with Richard — rather than providing emotional support — is a source of intense
trauma. As Dr. Katz noted, there would be no harm to Heather if the parental
relationship were severed, as it had already been severed and had not existed for
two years.
Our courts have recognized that, despite a child's strong interest in
stability and permanence, a trial court may vacate a judgment terminating
parental rights upon a showing of an exceptional situation, or a significant
change in circumstances rendering the judgment inequitable. J.N.H., 172 N.J.
at 472-73 (citing R. 4:50-1(f) and (e)). And, an appellate court may remand to
permit the trial court to consider current facts that may undermine its previous
findings. N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 249
(App. Div. 2010).
8
We decline to take judicial notice of statistics Richard cites purporting to show
that only 6.4 percent of bi-racial children were adopted in New Jersey.
See N.J.R.E. 202(b). He evidently misreads the report. See Report to Congress,
Administration for Children & Families, Child Welfare Outcomes 2016,
https://www.acf.hhs.gov/sites/default/files/cb/cwo2016.pdf. Rather, bi-racial
children comprise 6.4 percent of all adopted children in 2017 (and 7.8 percent
of all children waiting for adoption). See Children's Bureau, Child Welfare
Outcomes Report Data, https://cwoutcomes.acf.hhs.gov/cwodatasite/
adopted/index. That statistic does not reflect what percentage of bi-racial
children are ultimately adopted. More importantly, broad statistics say nothing
about Heather's individual prospects for adoption.
A-4777-18T3
29
In T.S., the mother and daughter had formed a strong bond and the mother
had, by successfully completing drug rehabilitation, removed the danger that
prompted removal. Id. at 238-39.9 Following trial, the mother maintained her
sobriety, and maintained positive telephone and internet contact with her
daughter. Meanwhile, the prospective adoptive parents changed their minds,
and the child was assaulted in the resource home where she was next placed.
The Law Guardian shifted from supporting termination before the trial co urt, to
opposing it on appeal, id. at 247, as the twelve-year old daughter who "seemed
so sure she could live without her mother . . . now strongly expressed a wish to
resume their relationship," id. at 249. Presented with those circumstances, we
reversed the trial court's judgment and remanded for an assessment of the
parent's current ability and a reassessment of the second and fourth prongs.
In J.N.H., the Supreme Court reversed a trial court's order denying a
motion to vacate a judgment terminating parental rights. The mother presented
evidence to the trial court of her successful rehabilitation and her successful
resumption of custody of her two other children, thereby belying predictions at
trial that her sobriety would not last. More importantly, to the Court, she
9
Notably, in that case, Dr. Katz testified on the mother's behalf against
termination.
A-4777-18T3
30
presented evidence of the child's worsening emotional problems in foster care,
three years after an expert opined he was thriving there. 172 N.J. at 475 -77.
Both T.S. and J.N.H. are distinguishable. Although, as in those cases,
Heather has not secured the positive, permanent placement anticipated, the
parents in those cases made significant progress in addressing the conditions
that posed a threat of harm to the child. That is not true in this case. As the
experts testified, Richard's sobriety was not sufficient to alleviate the harm to
Heather. Reunification had failed and would continue to fail, they opined,
because of the significant trauma Heather experienced, and her association of
Richard with that trauma. There also is no evidence that Heather herself has
changed her views regarding reunification.10
In closing, we do not question that Richard loves Heather and honestly
believes that with time and services, he could be a source of emotional support
and stability, rather than a trigger for emotional harm. However, the record
supports Judge Gaus's determination that Richard has caused Heather serious
10
We express no opinion as to the merits of a motion before the trial court under
Rule 4:50-1 to vacate the judgment based on a significant change in
circumstances or other exceptional situation. We hold only that the fact that
Heather was removed from the Smith home — without more — is insufficient
in this case to warrant our reversing the trial court's judgment and remanding for
further fact-finding.
A-4777-18T3
31
harm; he is unable to prevent future harm from his relationship; the Division
provided reasonable services; and termination would not cause more harm than
good. Those findings subsist, notwithstanding Heather's post-judgment removal
from the Smiths' home.
Affirmed.
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32